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NINTH CIRCUIT REJECTS NEPA CHALLENGES TO LOS ANGELES METRO’S LIGHT RAIL EXTENSION PROJECT

Wednesday, January 18th, 2017

In Japanese Village, LLC v. Federal Transit Administration, 2016 U.S. App. LEXIS 21700, the Ninth Circuit affirmed the district court’s rulings and rejected NEPA challenges to the Los Angeles Metropolitan Transportation Authority’s (“Metro”) approval for a 1.9-mile light rail extension line in downtown Los Angeles. The project was proposed to be funded by the Federal Transit Administration (“FTA”).

The project, intended to meet increased demand for public transit, would connect the light rail Gold Line to the Blue and Expo Lines. In January 2012, Metro and FTA (“Agencies”) issued an EIS for the project. Subsequently, the FTA issued the record of decision (“ROD”) approving federal funding for the project. In January 2013, the plaintiffs sued, challenging the project’s NEPA compliance. The lower court granted summary judgment in favor of the Agencies, except for one claim which required them to analyze tunneling alternatives for the project.

On appeal, the court first declined to take judicial notice of three documents on Metro’s website, including the federal ROD and the mitigation and monitoring and reporting program, because they were already included in the appellate record.

 

Second, applying the “arbitrary and capricious” standard under the Administrative Procedure Act, the court held that the EIS adequately analyzed the project’s impacts. The court found that the analysis of construction-related noise and vibration impacts was adequate, given that the Agencies took a “hard look” at alternatives and addressed the extent to which adverse noise effects could be avoided. However, the court declined to decide whether temporary relocation of residents or businesses to mitigate construction-related noise and vibration impacts was a valid mitigation measure under NEPA.

Similarly, the court found that the EIS satisfied NEPA’s “hard look” requirement with respect to the impacts associated with parking, grade separation, and emergency vehicle access. The court also held that the mitigation measures that incorporated “adaptive management” plans concerning traffic, vibration, and noise impacts satisfied the “hard look” requirement. Further, the court held that the mitigation measures to reduce subsidence, which could result from the tunneling under the Japanese Village, did not impermissibly defer required analysis because an expert study addressing potential subsidence impacts was prepared after the EIS was issued and became part of the administrative record for the ROD.

Third, the court held that the Agencies properly rejected the use of closed-face tunnel boring machine, a method of construction that would help minimize disruption to surface traffic and adjacent land uses, in certain project areas. The Agencies’ decision was based on three technical impediments identified. Giving deference to the Agencies’ technical expertise, the court found the Agencies were not arbitrary or capricious in making that decision.

Finally, the court held that a supplemental EIS was not required after variances to the City of Los Angeles’ construction noise restrictions were sought to undertake utility relocations necessary for the project. The court explained that the EIS had already addressed the noise and light impacts of possible nighttime construction.

NINTH CIRCUIT COURT OF APPEALS AFFIRMS BLM’S PROPOSAL TO EXPAND ACCESS FOR OFF-ROAD VEHICLES IN IMPERIAL SAND DUNES SPECIAL RECREATION MANAGEMENT AREA

Thursday, September 1st, 2016

In Imperial County, just north of the Mexican border, lies the Imperial Sand Dunes Planning Area, a 227,000-acre tract of desert, of which 214,930 acres is managed by the Bureau of Land Management (BLM). This swath of land is home to the Algodones Dunes, the largest active sand dune system in the United States. A 138,111-acre portion of the Planning Area, designated as the Imperial Sand Dunes Special Recreation Management Area (Dunes), is set aside for the protection of plants and wildlife, as well as for outdoor recreation. The Dunes attract over one million visitors annually, especially off-road vehicle enthusiasts. In Center for Biological Diversity v. Bureau of Land Management, 2016 U.S. App. LEXIS 14949, the Ninth Circuit Court of Appeals reviewed BLM’s proposal to expand access for off-road vehicle recreation in the Dunes (Proposal).

Center for Biological Diversity (CBD) contended that the plain language of the Endangered Species Act requires an Incidental Take Statement for threatened plants, rather than just fish and wildlife. In reviewing an agency’s interpretation of a statute it is charged with administering, the Court applied the two-step statute interpretation framework set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) 467 U.S. 837 (Chevron): (1) whether Congress has spoken on the issue in the statute; and (2) if the statute is ambiguous with respect to the issue, whether the agency’s interpretation is reasonable. The Court determined that the Endangered Species Act on its face does not require Biological Opinions to contain Incidental Take Statements for threatened or endangered plants.  The Court did not proceed to the second step of the Chevron test, but it noted that its reading of the Endangered Species Act was consistent with the USFWS’ longstanding interpretation of the Incidental Take provision.

CBD also claimed that BLM’s conclusion that implementation of its Proposal would not increase ozone emissions was arbitrary and capricious and violated the Clean Air Act, the Federal Land Policy and Management Act, the National Environmental Policy Act, and the Administrative Procedure Act. Specifically, CBD took issue with BLM’s assumptions regarding the number of individuals who will visit the Dunes and how an average visitor will spend their time. The Court noted that BLM’s assumptions were entitled to deference so long as they are supported by “substantial evidence,” and found that the administrative record demonstrated that BLM “considered the relevant factors and articulated a rational connection between the facts found and the choices made.” Accordingly, the Court concluded that CBD had failed to demonstrate that BLM’s emissions analysis was arbitrary and capricious under this deferential standard.

Key Point: The Endangered Species Act does not require an Incidental Take Statement for threatened or endangered plants.

IN UNPUBLISHED OPINION, COURT OF APPEAL UPHOLDS CEQA REVIEW FOR FRESNO’S FULTON MALL PROJECT

Monday, August 15th, 2016

The City of Fresno’s Fulton Street lies in the heart of its downtown and was once a bustling commerce center lined with numerous retailers. Suburbanization drew those retailers to the periphery of town in the 1950s. In the early 1960s, in an attempt to revive its urban core, the City turned Fulton Street into Fulton Mall, a 6-block pedestrian mall. Fulton Mall featured planting beds with shade trees, shrubs, and flowers; water fountains, pools, and streams; shade pavilions, siting areas, and playgrounds; and sculptures and mosaic artwork. Unfortunately, interest in Fulton Mall declined by the 1970s and it soon became plagued by high crime rates, deteriorating physical conditions, and low lease rates.

In 2011, the City of Fresno released a draft Fulton Corridor Specific Plan that identified three ways of improving Fulton Mall: (1) reintroduce two-way car traffic throughout the Mall; (2) reintroduce two-way car traffic but keep selected original features of the Mall; or (3) keep the Mall as pedestrian only and invest funding in restoring and repairing the original features. Option 2 was established as the City’s preference. Thereafter, the City began applying for (and receiving) various state and federal funds to put toward the Fulton Mall project (Project). In 2013, the City began preparing the environmental impact report (EIR) for the Project in compliance with CEQA. An initial study released with the Notice of Preparation determined that the Project may have significant impacts on aesthetics and historical resources, but would not significantly impact air quality, greenhouse gas emissions, parks, traffic, and utilities.

The City certified the final EIR in early 2014 and selected Option 1 as the preferred alternative due to its “straight street” design and the increased number of on-street parking spaces. The Downtown Fresno Coalition (Coalition) filed a petition for writ of mandate, alleging that the City pre-committed to Option 1 through its federal funding agreements and that the EIR inadequately analyzed certain impacts.  In Downtown Fresno Coalition v. City of Fresno, 2106 Cal. App. Unpub. LEXIS 5212, the Fifth District Court of Appeal rejected these claims and found that the City had complied with CEQA.

The Court first held that the Coalition was not collaterally estopped from bringing the CEQA suit even though it had previously brought a suit under the National Environmental Policy Act (NEPA) in federal court against the City, the Federal Highway Administration, Caltrans, and the federal Department of Transportation regarding federal funding that was given to the project without a NEPA review. The Court found the issues in the two cases to be distinct, despite the City’s arguments about the similarities between CEQA and NEPA.

Next, the Court addressed the Coalition’s argument that the federal funding had effectively precluded consideration of an alternative that featured full or partial restoration of the Mall. The Court noted that the grant funding was conditional on full compliance with CEQA and found that the City had fully complied by with the Supreme Court’s requirements in Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 by not precluding consideration of any project alternative or mitigation.

Finally, the Court considered the Coalition’s claim that the EIR did not present a legally adequate analysis of the Project’s effects on certain resources. The City had narrowed the scope of the EIR to focus on the Project’s potentially significant effects on short-term visual character and historical resources. The Court found the analysis sufficient because impacts to air quality, greenhouse gas emissions, parks, traffic and utilities were determined to be less than significant; moreover, the initial study had presented extensive rational for that determination.  The Court concluded that the City had no legal obligation to analyze less than significant impacts in the EIR in the manner urged by Coalition.

NINTH CIRCUIT REJECTS NEPA CHALLENGE TO THE JAMUL INDIAN VILLAGE CASINO PROJECT

Friday, July 29th, 2016

In Jamul Action Committee v. Chaudhuri, 2016 U.S. App. LEXIS 13104, the Ninth Circuit held that the National Environmental Protection Act (NEPA) did not apply to the Jamul Indian Village Casino project in Jamul, California due to an irreconcilable timing conflict between NEPA and the Indian Gaming Regulatory Act (IGRA).

The Jamul Indian Village (Tribe), a federally-recognized Indian tribe, has been planning the Casino for more than fifteen years. In the late 1990s, the Tribe enacted a gaming ordinance (GO) describing how it would operate a high-stakes gaming facility in Jamul. In 2013, the National Indian Gaming Commission (Commission) approved a revised GO for the project under the IGRA.

The Casino has been opposed by many individuals and organizations, including the Jamul Action Committee, the Jamul Community Church, and four residents of rural Jamul. This lawsuit against the Commission was the most recent attempt to stop the project. The project opponents argued that NEPA review should have been conducted before the Commission approved the revised GO in 2013. The district court held that a NEPA review was not required because the Commission’s approval was not a major federal action within the meaning of NEPA.

The Ninth Circuit affirmed the district court’s decision, but on different grounds. The appellate court, citing Flint Ridge Development Company v. Scenic Rivers Association of Oklahoma (1976) 426 U.S. 776, held that a NEPA review was not required due to an irreconcilable and fundamental conflict between IGRA and NEPA. The court reasoned that it was impossible for the Commission to comply with both statutes. The shortest time frame in which an EIS could be prepared under the NEPA statutory scheme was 120 days. But under IGRA, the Commission was required to approve the revised GO within 90 days of receiving it, a timeline controlled by Congress and triggered by the action of the Tribe.

Key Point: An agency may not be required to prepare an EIS, even for a major federal action, if an irreconcilable and fundamental conflict exists between NEPA and another applicable substantive statute. Such a conflict exists when a statute mandates a fixed deadline that is too short to allow the agency to comply with NEPA and the deadline and action triggering the deadline are not within the agency’s control.

NINTH CIRCUIT REJECTS NEPA CHALLENGE TO CHANGES TO ALBENI FALLS DAM OPERATIONS

Monday, June 27th, 2016

In Idaho Conservation League v. Bonneville Power Administration, 2016 U.S. App. LEXIS 11175, the Ninth Circuit rejected a National Environmental Protection Act (“NEPA”) challenge to changes in the operation of the Albeni Falls Dam.

The Dam, constructed in 1957 as part of the Federal Columbia River Power System, helps provide power to the Pacific Northwest. It is jointly managed by the U.S. Army Corps of Engineers (“Corps”), the Bonneville Power Administration (“BPA”), and the Bureau of Reclamation. The Dam straddles the Pend Oreille River, which connects Lake Pend Orielle and the Columbia River. When water is released from the lake, it drives turbines that generate electricity. For decades, the Corps fluctuated the level of the lake in some winters in order to generate power as needed.

In 1995, the Corps became concerned that the winter fluctuations were adversely affecting the kokanee salmon. In 1997, the Corps began holding the lake’s elevation constant in the winter. In 2009, BPA urged the Corps to return to a flexible management approach so the Dam could generate power year-round if needed. After two years of discussions and a public comment period, the agencies issued an environmental assessment in 2011. It concluded the proposed winter fluctuations would have no significant environmental impact.

Petitioner argued that an environmental impact statement (“EIS”) should have been prepared because this change to the ongoing operations that amounted to a “major Federal action.” The Ninth Circuit, citing Upper Snake River Chapter of Trout Unlimited v. Hodel (9th Cir. 1990) 921 F.2d 232, held that an EIS was not required because the proposed winter fluctuations did not result in a significant shift in operational policy or change the status quo due to the pre-1997 operations at the Dam. The court also noted that the agencies maintained discretion to change the water levels from 1997 to 2011 and met yearly to decide how the Dam would be operated. As stated by the court: “Requiring an agency to prepare an EIS every time it takes an action consistent with past conduct would grind agency decisionmaking to a halt.”

Key Point

In determining whether a proposed change to the existing operation of a facility constitutes a major Federal action significantly affecting the quality of the human environment, thereby triggering an EIS under NEPA, courts consider several factors including whether the change would alter the status quo in light of the past and current operations. In this instance, a proposed action that involved operating a completed facility in a way that it had been operated in the past did not change the status quo, was not considered a major action, and thus did not require an EIS.

NINTH CIRCUIT REJECTS NEPA CHALLENGE TO SAN DIEGO NAVY BROADWAY COMPLEX PROJECT

Friday, April 8th, 2016

In a published opinion, San Diego Navy Broadway Complex Coalition v. United States Department of Defense, 2016 U.S. App. LEXIS 5813, the Ninth Circuit affirmed the district court and rejected a National Environmental Protection Act (NEPA) challenge to the redevelopment of the San Diego Navy Broadway Complex (Complex), a fifteen-acre waterfront site adjacent to downtown San Diego.

In 1987, the Navy and the City of San Diego (City) executed a Memorandum of Understanding (MOU) concerning redevelopment of the Complex, which would expand it from 861,000 square feet of Navy office, warehouse, and industrial space to 3.25 million square feet of mixed military and civilian facilities, including hotels, retail, and entertainment spaces. An Environmental Impact Statement (EIS) was prepared for the MOU in 1990, but adverse real estate conditions in the early 1990s caused the Navy and City to delay project implementation.

In 2006, the Navy began taking steps to implement the project, and conducted an Environmental Assessment (EA) and issued a Finding of No Significant Impact (FONSI). A citizen’s group called San Diego Navy Broadway Complex Coalition (Coalition) sued, claiming that the Navy provided insufficient notice about the EA and FONSI, resulting in a lack of public participation. The District Court agreed and granted partial summary judgement in favor of the Coalition.

In 2009, the Navy issued a new EA and FONSI, finding that there were not significant changes since the 1990 EIS to warrant further environmental review. The Coalition filed another challenge, this time arguing that the potential environmental impact of a terrorist attack warranted a supplemental EIS. The District Court granted summary judgment in favor of the Navy and the Coalition appealed.  

The Ninth Circuit, citing San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission (9th Cir. 2006) 439 F.3d 1016, held that the risk of a possible terrorist attack must be analyzed under NEPA given the general risk of terrorism, the location of the project near downtown San Diego, and the military commands to be housed in the Complex. The fact that there was no specific threat against the Complex was irrelevant given the risks of terrorism are “constantly in flux.”

However, the Ninth Circuit held that the 2009 EA sufficiently analyzed the threat of terrorism, mainly by stating that the Navy’s Anti-Terrorism Force Protection requirements would apply to the Complex and incorporating by reference the Unified Facilities Criteria in the Defense Department’s Minimum Antiterrorism Standards for Buildings. The panel found that this was enough to foster informed decision-making and informed public participation, though it would have preferred a single, clear document that included more specific information about the potential environmental effects of terrorism.

Senior District Judge James Carr, sitting by designation, dissented and would have found the EIR’s analysis of a potential terrorist attack to be inadequate.

Oil Spill Response Plan Does Not Require Endangered Species Act Consultation or Environmental Impact Statement

Tuesday, June 23rd, 2015

In Alaska Wilderness League v. Sally Jewell, 2015 U.S. App. LEXIS 9755, a coalition of environmental groups sued various administrative agencies following their approval of Shell Gulf of Mexico, Inc.’s (Shell’s) Oil Spill Response Plans (OSRPs) for their planned oil rigs in Alaska’s arctic coast.

OSRPs are mandated under a combination of both the Clean Water Act and Outer Continental Shelf Lands Act (OCSLA). OCSLA creates a four-step process for exploring and developing off-shore oil and natural gas resources. Notably, the third step requires applicants to submit an exploration plan for secretary approval along with an OSRP, which is required under the Clean Water Act.

The Clean Water Act provides the framework under which an OSRP must be prepared, including a requirement that the Bureau of Safety and Environmental Enforcement (BSEE) promulgate regulations requiring owners and operators of offshore facilities to submit an OSRP “for responding, to the maximum extent practicable, to a worst case discharge… of oil or a hazardous substance.” (33 U.S.C. § 1321, subd. (j)(5)(A)(i).) Under the Clean Water Act’s Compliance requirements, BSEE must then promptly review these plans, require amendments to any plan that does not meet the statutory requirements, and “shall” approve any plan that meets those requirements.

Here, the plaintiffs alleged that the BSEE unlawfully approved two of Shell’s OSRPs. Shell intervened and both sides filed for summary judgment. The district court granted summary judgment in favor of the defendants, and the plaintiffs appealed. On appeal, the plaintiffs argued: (1) BSEE’s OSRP approval was arbitrary and capricious under the Administrative Procedure Act (APA); (2) BSEE should have engaged in Endangered Species Act (ESA) consultation before approving the OSRPs; and (3) the OSRPs were subject to review under the National Environmental Protection Act (NEPA) before the agencies could approve them. The Ninth Circuit Court of Appeals (Court) disagreed, affirming the lower court’s decision in its entirety.

First, the plaintiffs argued BSEE’s OSRP approval was arbitrary and capricious under the Administrative Procedure act. They argued Shell assumed a 90 to 95 percent recovery rate in a worst case discharge event, and that recovery rate was unrealistic and unsupported. The court disagreed, finding that Shell claimed 10 percent of the oil would drive toward the mainland, not that all but 10 percent would be recovered. The court also found that Shell had the capacity to store up to 95 percent of the worst case scenario discharge volume, not that it would actually be able to collect that much.

Next, the plaintiffs argued BSEE should have engaged in ESA consultation before approving the OSRPs, since ESA section 7. The statute provides that BSEE “shall… approve any plan that meets the requirements” of the statute.  (32 U.S.C. § 1321 subd. (j)(5)(E).) Pursuant to this requirement, BSEE claimed it lacked discretion to consider factors apart from the delineated statutory criteria and, as a result, ESA consultation was unnecessary.  While the court concluded the statutory requirements applicable to OSRPs were ambiguous, the court deferred to BSEE’s reasonable interpretation.  Thus, the court rejected the plaintiff’s ESA consultation argument.  Lastly, the plaintiffs argued that BSEE violated NEPA because they failed to prepare an Environmental Impact Study (EIS) before approving the OSRPs. NEPA is subject to a “rule of reason” that frees agencies from preparing an EIS on actions they cannot refuse to perform. When an agency cannot prevent a certain effect due to its limited statutory authority over the action, the agency does not need to consider the environmental effects arising from that action. Here, since the court held BSEE had no discretion in approving or disapproving the OSRPs, the OSRPs did not require an EIS.

Justice D.W. Nelson dissented . Justice Nelson acknowledged that “[t]here is no point in consulting if the agency has no choices.” (Ctr. For Food Safety v. Vilsak (2013) 718 F.3d 829, 841.) However, Justice Nelson interpreted BSEE’s regulations and implementing statutes as providing BSEE with choices that allowed it to influence a private activity to benefit an endangered species.  Therefore, Justice Nelson concluded BSEE’s action to approve an OSRP was discretionary and triggered ESA consultation.

Justice Nelson also concluded BSEE was required to prepare an EIS under NEPA. She argued BSEE had the necessary authority to trigger NEPA review because the Oil Pollution Act grants them significant authority to regulate offshore facilities and directs BSEE to consider environmental factors in its decision making process.

Key Point

The approval of Oil Spill Response Plans by the Bureau of Safety and Environmental Enforcement is a nondiscretionary action that does not trigger Endangered Species Act consultation or necessitate an Environmental Impact Statement under NEPA.

Ninth Circuit Rejects ESA and NEPA Challenges to Yellowstone Bison Management Plan

Thursday, December 11th, 2014

In Alliance for the Wild Rockies v. U.S. Department of Agriculture, 2014 U.S. App. LEXIS 21949, the Ninth Circuit Court of Appeals affirmed in part and reversed in part an environmental advocacy groups’ challenge to a management plan for bison herds in Yellowstone National Park. While the court reversed several procedural determinations of the trial court, the court upheld summary judgment on the Environmental Species Act (ESA) and National Environmental Protection Act (NEPA) claims and held the respondent federal agencies adequately analyzed the impacts of the Interagency Bison Management Plan on Yellowstone grizzly bears.

To minimize the risk of disease transfer between Yellowstone bison and cattle, various federal agencies developed a bison management plan that allowed the Montana Department of Livestock to use low-altitude helicopter flights each year to herd bison from grazing areas in low elevations back into Yellowstone. When the original plan was approved in 2000, the federal agencies completed an environmental impact statement (EIS) that concluded the impact of the management plan on Yellowstone grizzly bears would be insignificant. The federal agencies also completed a biological evaluation in accordance with Section 7 of the ESA that reached the same conclusion.

In 2012, the National Park Service recognized the helicopter flights were overlapping more than anticipated with the reemergence of Yellowstone grizzlies following their winter hibernation. A second biological evaluation was conducted, which also determined that any impact on Yellowstone grizzlies was insignificant.

The court first reversed the district and held that petitioner had standing to challenge the management plan under the ESA and NEPA. The court rejected the trial court’s reasoning that petitioner had no standing because the federal agencies did not have the authority to unilaterally stop the low-elevation helicopter flights. Instead, the remedy sought by petitioner under the ESA was a biological opinion and incidental take statement for the Yellowstone grizzlies. Under NEPA, petitioner sought a supplemental EIS. Because both of these remedies are within the authority of the federal agencies, the court held petitioner had standing.

Petitioner brought two challenges under the ESA—first that Section 7(a)(2) of the ESA required an updated biological opinion and second, that a take permit was required for the Yellowstone grizzly under Section 9. The court affirmed the trial court’s decision that the Section 7(a)(2) claim was moot because during the course of the litigation the National Park Service completed a biological opinion.

With respect to the Section 9 claim, the court first reversed the trial court’s decision that the claim was barred because the complaint was filed less than 60 days after petitioner gave the federal agencies notice of the lawsuit. Although Section 11(g)(1)(A) prohibits plaintiffs from filing an ESA claim less than 60 days after notifying the defendant, in the instant case, petitioner filed its initial complaint without the ESA claims and only added them after the 60 days was over. The court held the plain language of the statute did not prohibit filing a complaint and amending it to include ESA claims after the 60-day notification period.

Getting to the substance of the ESA and NEPA claims, the court upheld summary judgment on the section 9 claim and found the record lacked evidence to show the helicopter flights would result in a “take” of grizzly bears. Similarly, NEPA did not require the federal agencies to complete a supplemental EIS because the original EIS already analyzed the possibility of increased encounters between the helicopters and Yellowstone grizzlies.

KEY POINT

The court emphasized the redressability requirement for standing does not require a court to determine whether the plaintiff will actually achieve the relief it desires. It is sufficient that the relief “could protect their concrete interests.” Here, even if an incidental take statement or biological opinion would result in greater protection of the Yellowstone grizzlies, petitioner had a right to adjudicate the claim.

Ninth Circuit Approves Air Quality Analysis for Expressway Connecting 405 Freeway and Ports of Long Beach and Los Angeles

Monday, November 17th, 2014

In NRDC v. United States Department of Transportation, 2014 U.S. App. LEXIS 20815, the Ninth Circuit Court of Appeals affirmed the district court’s summary judgment in favor of the U.S. Department of Transportation (DOT) and other federal and state defendants (defendants). The court held defendants’ environmental review of an expressway connecting the ports of Los Angeles and Long Beach with the 405 freeway did not violate the Clean Air Act (CAA) and National Environmental Protection Act (NEPA).

As part of the environmental review, defendants conducted an air quality analysis, which included the project’s impact on a fine particulate matter known as PM2.5. The CAA requires the analysis to ensure the project does not cause or contribute to a violation of air quality standards “in any area.” Because there was no PM2.5 receptor in the immediate vicinity of the project, defendants based their data analysis on a receptor five miles away from the project. NRDC contended this violated the CAA because “any area” should be interpreted as requiring a PM2.5 analysis immediately adjacent to the project.

After finding the plain meaning of “any area” was ambiguous in the statute, the court looked to the DOT and U.S. Environmental Protection Agency’s (EPA) interpretation of the phrase. NRDC contended several regulations required the narrow interpretation of “any area.”  However, none of the regulations specifically addressed PM2.5. Thus, the court was not persuaded that the regulations decisively required the analysis within the immediate vicinity during the time defendants conducted the air quality analysis.

Instead, the court looked to guidelines for analyzing PM2.5 levels jointly published by the DOT and EPA in the Federal Register. The court stated the guidelines “implicitly, but authoritatively” interpreted the meaning of “any area” in the context. The guidelines provided several examples of acceptable PM2.5 analysis methods including examples using different locations with similar characteristics. NRDC offered no reason why the court should not rely on the jointly published guidelines. Accordingly, the court held it was reasonable for defendants’ to use the nearby monitor.

The court next rejected NRDC’s argument that defendants violated NEPA because the EIS relied on outdated air quality standards and failed to fully disclose the project’s likely effects on public health. Although the EPA cut the maximum permissible level of PM2.5 in 2006, the new standard did not apply until 2010 and defendants completed the EIS in 2009. The EIS also acknowledged that PM2.5 levels exceeded the new standard, but stated any increase in PM2.5 would be offset by the reduced vehicle congestion from the expressway.

KEY POINT

The CAA does not require PM2.5 analysis to be based on impacts immediately adjacent to a project when the nearest sensitive receptor is not located adjacent to the project.  Although courts look to regulations published in the Code of Federal Regulations first for interpretation of ambiguous statutory phrases, reliance on other sources is permitted in circumstances such as this when guidelines have been published in the Federal Register and clarify the meaning of an otherwise undefined statutory term.

Court Finds No Supplemental Environmental Impact Statement Needed

Friday, March 8th, 2013

In Great Old Broads v. RLH Ram Abigail Kimbell, (March 4, 2013) 2013 U.S.App.LEXIS 4422, the Ninth Circuit Court of Appeal affirmed the District Court’s summary judgment in favor of the United States Forest Service (Forest Service) on the merits in an action challenging the Forest Service’s approval of the restoration of a flood-damaged road in the Humboldt-Toiyabe National Forest, but reversed the District Court’s conclusion on exhaustion of administrative remedies.

In the original action Appellants challenged the Forest Service’s record of decision (ROD), which determined a method for restoring the South Canyon Road as a part of the Jarbidge Canyon Project (Project).  The Project was an effort to reestablish the South Canyon Road after flood waters damaged it, eliminating vehicle access to the Snowslide Gulch Wilderness Portal in the Jarbidge Wilderness.

In 2005, the Forest Service issued a final (ROD) and final environmental impact statement (EIS).  The ROD did not apply any of the four alternatives analyzed in the EIS.  Instead, it combined elements from three of the alternatives into one selected alternative.  Appellants contend the Forest Service’s approval of the Project violated NEPA.  Specifically, Appellants argued the selected “combined” alternative dramatically changed the environmental impacts, therefore requiring preparation of a supplemental environmental impact statement (SEIS).

The court held the Forest Service’s decision to not prepare a SEIS was not arbitrary or capricious because it met the Council for Environmental Quality’s (CEQ) guidelines.  The CEQ guidelines establish a SEIS is not required when two requirements are satisfied: (1) the new alternative is a minor variation of one of the alternatives discussed in the draft EIS, and (2) the new alternative is qualitatively within the spectrum of alternatives that were discussed in the draft EIS.  The Court held the selected alternative met both of these requirements because it was primarily made of elements from Alternatives 1, 3, and 4, which were all previously analyzed as elements in the EIS.  The Forest Service and the public could therefore adequately assess the cumulative effect of these elements, and reasonably determine that the combination was “within the spectrum” of previously analyzed alternatives.

Next, Appellants argued that even if the Forest Service correctly decided that a SEIS was not required, it violated NEPA because it did not adequately document that determination in the record.  The Court disagreed finding the Forest Service did make a reasoned decision.  Additionally, the Forest Service adequately documented the decision in the record with an explanation of why a SEIS is not needed.  The Court concluded the Forest Service met the requirement under NEPA to “document its decision that no SEIS is required to ensure that it remains “alert to new information that may alter the results of its original environmental analysis,” and “continue to take a hard look at the environmental effects of its planned action.”

In regard to the exhaustion doctrine, the Court stated that the Forest Service and the District Court, when reviewing Appellant’s claims, considered only the filed appeal letter and not any of the attachments.  The Forest Service claimed that it did not consider the attached comment letters because the appeal letter did not explain which parts of which comments in the attached letters were relevant to each element of the appeal.  However, Forest Service regulations provide that attachments are a part of an appeal.  Therefore the Court overturned the District Court’s ruling and held that the Appellant’s did in fact exhaust its administrative remedies.

Key Point:

An agency has flexibility to modify alternatives presented in the draft EIS.  However, if substantial changes are made, the agency must prepare a SEIS.  Furthermore, an agency must clearly document its decision not to prepare an SIES to ensure that it took into consideration any new information that may alter the results of the original environmental analysis.

Written By: Tina Thomas, Michele Tong and Andrea Lutge (law clerk)
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The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.